### 2002 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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. e du/thir dc ir c uit_2002/134NOT PRECEDE NTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________
No. 00-2381

_____________

UNITED STATES OF AMERICA

v.

THOMAS P. BRENNAN,

Appellant

_____________ Appeal from the United States District C ourt for the District of New Jersey (D.C. Crim. No. 00-cr-00010) District Judge: Honorable Anne E. Thomp son

_____________ Submitted Under Third Circuit LAR 34.1( a) February 11, 2002 Before: MANSMANN, McKEE and BARRY, Circuit Judges.

(Filed: February 19, 2002)

_____________

MEMORANDUM OPINION OF THE COURT

_____________ MANSMANN, Circuit Judge. Thomas Brennan was convicted following a jury trial on three counts of income tax evasion in violation of 26 U.S.C.  7201 and three counts of failure to file income tax returns in violation of 26 U.S.C.  7203. The District Court sentenced Brennan to a 30-month term of imprisonment on each of the tax evasion counts and to a 12-month term of imprisonment on each of the failur e to file counts, the terms to be served concurrently. Brennan filed a timely notice of appeal, but his counsel seeks leave to withdraw under Anders v. California, 386 U.S. 73 8 (1967), claiming that Brennan's appeal is wholly frivolous. Pursuant to Third Circ uit Local Appellate Rule 109.2(a), Brennan filed pro se pleadings raising additional i ssues. We conclude that counsel's Anders brief m eets the requirements outlined inSmith v. Robbins, 528 U.S. 259, 285 (2000), and Uni ted States v. Marvin,

211 F.3d 778, 780-81 (3d Cir. 2000). Because we do not find meri t in any of the issues raised by counsel in the Anders brief or in Brennan's pro se submissions, we will grant counsel's motion to withdraw and will affirm the judgment in a criminal case.

I. The facts and procedural history underlyi ng this matter are well-known to the parties. Accordingly, we turn directly to the issues presented. Counsel's Anders brief identifies four is sues arguably supporting this appeal. First counsel questions whether the Distri ct Court had jurisdiction over this matter because Brennan's tax liability was not firs t determined administratively. Exhaustion of administrative remedies does not appl y to this case; 18 U.S.C.  3231 establishes that district courts have jurisdiction to consider alleged violations of federal criminal statutes. We agree with counsel that the argument that the District Court lacks jurisdiction because Fed.R.Crim.P. 54 does not spec ifically mention the District Court of New Jersey is similarly frivolous. Counsel next addresses Brennan's argument , raised in the District Court, that payment of federal income tax is not mandated by any federal statute or regulation. Congress, pursuant to the Sixteenth Amendment, exer cised its power to establish and enforce payment of federal income tax. 26 U.S.C.  7201 and 7203 criminalize income tax evasion. The indictment in this case charged B rennan with violating these statutes; it was not necessary for the government to allege or p rove that Brennan violated any of the implementing regulations. The third arguable issue identified by co unsel concerns whether Brennan acted willfully when he violated the tax laws and w hether the jury might have been confused by the District Court's instructions relat ing to willfulness. We have read the charge as given and do not find it confusing. In a ny event, our precedent establishes that where a jury concludes that a person charged with t ax evasion engages in affirmative acts to evade taxes, the willfulness requirement is sati sfied. United Sates v. McGill, Jr., 964 F.2d 222 (3d Cir. 1982). The record reveals eviden ce of a number of affirmative acts thatmay reasonably have been seen as related to tax eva sion. This argument,

too, lacks merit. Finally, counsel identifies as an arguabl e issue whether the District Court erred in calculating the amount of tax due for purp oses of determining Brennan's sentence. There is case authority for the proposit ion that a sentencing court may consider a defendant's tax liability for years not charged i n the indictment. See United States v. Rabin, 986 F.Supp. 887, 890 (D.N.J. 1997), aff'd, 1 59 F.3d 1554 (3d Cir. 1998). Brennan does not cite authority to the contrary and, in any event, has failed to establish that he would have received a more lenient sentence had his tax liability been calculated excluding the disputed amounts. The issues identified in Brennan's pro se submissions repeat or recast the arguments discussed in counsel's Anders brief. Aga in, we do not find merit in these allegations of error.

II. For the foregoing reasons, we will grant counsel's motion to withdraw and will affirm the judgment in a criminal case.

_________________________________
To the Clerk:

Please file the foregoing opinion.

/s/ Carol Los Mansmann Circuit J udge